Creative Commons Licensing

1. Introduction

In recent years, as a result of the digital revolution and the Internet it has become possible for widespread and cheap, if not free, distribution of copyrighted works to take place. This has provided the opportunity for unprecedented collaboration and creativity. It also provided potential for widespread infringement. In response to this development IPR rights have gradually been strengthened in favour of the rights holder.

A concern has arisen that the strengthened default copyright laws that apply in most countries are restricting creativity in the digital environment by preventing people from accessing, reusing and distributing copyright material online. In particular it has been noted that, due to the rigidity and complexity of copyright in most jurisdictions, even those who want to make their copyright material more freely available are unable to do so without great effort or the services of a lawyer. In response to this an organisation called Creative Commons (CC) developed and made available several easy to use copyright licences known as Creative Commons licences (CC licences). These can be used by content creators who want to make their material available for others to access and reuse but do not wish to give up their rights completely.

CC describes itself as "a non-profit organisation devoted to expanding the range of creative works available for others to legally build upon and share". It provides licences suitable for enabling the spectrum of possibilities between full copyright protection and the public domain. The licences enable creators to retain their copyright whilst inviting/permitting certain uses of their work — hence the CC slogan 'some rights reserved', a riposte to the standard copyright notice of 'all rights reserved'.

CC licences offer varying options for reuse in a bid to redress the polarised approaches to intellectual property that are often applied:

"Too often the debate over creative control tends to the extremes. At one pole is a vision of total control — a world in which every last use of a work is regulated and in which “all rights reserved” (and then some) is the norm. At the other end is a vision of anarchy — a world in which creators enjoy a wide range of freedom but are left vulnerable to exploitation. Balance, compromise, and moderation — once the driving forces of a copyright system that valued innovation and protection equally — have become endangered species."
Creative Commons website www.creativecommons.org

The organisation aims to revive this "balance, compromise and moderation" by providing the CC licences for content creators to use with their works. The licences offer creators a "best-of-both-worlds" way to protect their works while encouraging certain uses of them. This is considered by many to be a very useful concept as some people (academics included) may not want to exercise all of the IP rights that the law affords them. Many people prefer exposure and widespread distribution of their work whether that be for altruistic, marketing or other purposes.

2. How do the Licences Operate?

As CC licences are based on copyright they are only applicable to copyright-protected works. Copyright is very wide-ranging and covers things such as websites, papers, film, images, parts of databases, text and sound recordings. The exception to this application is software programs. Although these are protected by copyright, it is not recommended that you apply a CC licence to software code. A preferable approach is to use one designed specifically for use with software such as those approved by the Open Source Initiative or Free Software Foundation.

The CC licences each contain a combination of four elements. These elements are:

Attribution (BY) — You let people copy, distribute, display, perform, and remix your copyrighted work, as long as they give you credit the way you request.

Non-commercial (NC) — You let people copy, distribute, display, perform, and remix your work for non-commercial purposes only. If they want to use your work for commercial purposes, they must contact you for permission.

No derivatives (ND) — You let people copy, distribute, display, and perform only verbatim copies of your work — not make derivative works based on it. If they want to alter, transform, build upon, or remix your work, they must contact you for permission.

Share alike (SA) — You let people create remixes and derivative works based on your creative work, as long as they only distribute them under the same Creative Commons licence that your original work was published under.

All licences must include the attribution element but each of the others is optional and a number of elements can be used in conjunction with each other. This results in the following six possible licences (sometimes called the 'core licences'):

Attribution (BY) — This is the most accommodating of the CC licences, in terms of what others can do with the work. It lets others copy, distribute, display, and perform the work and to build upon the work, even commercially, as long as they provide attribution for the original author.

Attribution Non-commercial (BY-NC) — The same as the above but only for non-commercial purposes.

Attribution No Derivative Works (BY-ND) — Allows use of a work in its current form for all purposes, as long as it is not changed in any way or used to make derivative works, and attribution is given to the original author.

Attribution Non-commercial No Derivative Works (BY-NC-ND) — This is the same as above but with the added 'non-commercial' stipulation. The most restrictive of the six core licences.

Attribution Share Alike (BY-SA) — This licence is often compared to open source software licences. It lets others copy, distribute, display, and perform the work and to build upon the work even for commercial purposes, as long as they give attribution to the original author and licence any derivative works under identical terms. All new works based on the original work will carry the same licence, so any derivatives will also allow commercial use and share alike remixing.

Attribution Non-commercial Share Alike (BY-NC-SA) — This is the same as above but with the added 'non-commercial' stipulation.

Before applying their chosen licence to a work a person needs to make sure they have the authority to do so. This means that they must make sure that the person who owns the copyright in the work is happy to have the work made available under the licence. It is interesting to note that the person applying the licence does not have to be the copyright holder.

All CC licences are non-exclusive. This means that a creator can permit the general public to use their work under a CC licence and is still at liberty to enter into separate and/or different non-exclusive licences with other users, for example, in exchange for money. Accordingly, if a work that you want to use is licensed under a CC licence that does not permit the action you would like to take, this does not mean you may not take it. You may contact the creator and/or licensor and ask for their permission under a separate licence.

All of the licences are reasonably straightforward to use. The licensor does not need to sign anything or register to use the licences and if someone misuses their CC licensed work the licence terminates automatically. However this termination only applies in relation to the person in breach of the licence; it does not apply to the other people who use the work under a CC licence in compliance with its terms.

The licences cannot restrict or reduce any user rights provided by the law. So for example, in the UK the licences cannot reduce the scope of fair dealing or any other exception to copyright provided by the Copyright, Designs and Patents Act 1988. They also leave moral rights unaffected.

It is important to note that by using a licence the licensor is not putting their work into the public domain. The licensor does not give up all their rights to the work. These licences are designed to enable a person to control how other people use a work. If a person prefers to put the work into the public domain CC have a separate 'dedication' for this purpose. However, in doing this the person must be clear that they are relinquishing all copyright interest they would have otherwise had in the work. There are also questions about the legal effectiveness of this dedication in certain jurisdictions including the UK.

3. Relevance to Digital Curation

Enabling Access and Re-Use

CC is of great relevance to digital curation in the way it simplifies and increases third party access to and usage of copyright works. Curation is dependant on a range of strategies that require the making of copies and modifications. Unhindered, copyright could impinge on digital curation considerably. However use of these licences may ameliorate the difficulties.

Moreover curation has a hugely important role to play from a social perspective in preserving and providing access to IPR protected resources to promote creativity and support progress. There is a concern amongst many including Lawrence Lessig (one of the founders of CC) that short-sighted attitudes towards new technologies are foreclosing creative possibilities that we have yet to even conceive of:

"Where a resource has a clear use, then, from a social perspective, our objective is simply to assure that that resource is available for this highest and best use … But … if we can't tell upfront how to use it — then there is more reason to leave it in common, so that many can experiment with different uses. Not knowing how a resource will be used is a good reason for making it widely available"
Lawrence Lessig. The Future of Ideas; The Fate of the Commons in a Connected World (2001)

Use of CC licences to expand the range of resources available in the Commons is of benefit in this respect.

Metadata

Each CC licence is expressed in three different formats:

the Commons deed (a simplified version of the licence described as 'human readable code')

the legal code (the full licence terms, described as 'lawyer-readable code')

the metadata (described as 'machine readable code')

The metadata is provided in RDF format. RDF stands for Resource Description Framework and is a language for representing information about resources in the World Wide Web. It is particularly intended for representing metadata about Web resources, such as the title, author, and modification date of a Web page, copyright and licensing information about a Web document, or the availability schedule for some shared resource. CC says that RDF, XML and even plain text-based tools can easily process their metadata files because they provide them in a structured format. They are also investigating the idea of offering tools to convert RDF to other formats.

Using the CC metadata can be a very useful way of alleviating the IPR concerns that some users have which serve to reduce their usage of potentially useful works. Using relatively simple technology users can easily ascertain what rights have been granted by the licensor of a file or work or could search specifically for works with licences that permit the uses they need.

Equality and Widespread Licensing

CC licences (and the relevant metadata) attach to a work and authorise everyone who comes into contact with it to use it in the way that has been described. So for example if user Y has a copy of creator X's CC licensed work, Y can give a copy to Z and Z will also be authorised to use the work consistent with the licence. Creator X then has a licence agreement with both Y and Z. From a curation perspective this has great advantages for widened participation in and access to digital materials.

4. Further Considerations

One of the potential criticisms of the licences which is rarely mentioned is that they contain a disclaimer of warranties. This means that there is no assurance that the licensor has all the necessary rights to permit reuse of the work in question. This is quite typical of 'open source' licences. Before using a CC licensed work you should satisfy yourself that the licensor has the appropriate rights to grant the licence. Having to do this arguably removes some of the benefits of the licences by reducing their simplicity and ease of use.

If you have used a CC licensed work and want to licence the resulting work it is worth remembering that some of the licences do not, as a practical matter, work together. So for example, if you took a work licensed under a BY-NC licence and built on it to create a new work you would not then licence that work under a BY-ND licence as that licence does not contain the non-commercial element.